Re: What can the judge do to me?

[Black Unicorn <unicorn@schloss.li>]

On Mon, 15 Apr 1996, Hal wrote:

> From: Black Unicorn <unicorn@schloss.li>
> > I've been involved in a private discussion with a list reader about 
> > the extent to which courts can impose contempt fines and sanctions.  I 
> > thought I would post the results to the list as many have expressed 
> > interest in the ways that courts might try to compel production of 
> > crypto keys or compel offshore e-cash institutions.  The bulk of my 
> > answer follows.
> 
> I thought this was very interesting and I appreciate Unicorn taking the
> time to lend us his expertise.

Thanks for taking the time to tell me so.

> 
> > The key to limiting the ability of a court to summarily enter contempt 
> > sanctions has always been the classification of the sanctions.  
> > "Criminal" sanctions, may entitle the witness to a trial by jury.
> > [...]
> > "Civil" sanctions do 
> > not require such protections and can be imposed on the spot and 
> > without review.
> 
> I didn't understand what distinguishes civil and criminal sanctions.  Is
> it the nature of the proceedings, whether it is a civil or criminal case
> that is before the judge?  Or is it the nature of the contempt charge
> itself, where not doing what the judge wants, in broad terms, is civil
> contempt?  And in that case, what would be criminal contempt?

It's muddled.

The key seems to be the nature and purpose of the sanctions.  (And mostly 
the purpose).

As a very general rule of thumb (as these tend to be case by case 
analysis) when the sanctions are punative, intended to punish past 
conduct and not influence future conduct, contempt sanctions are 
"criminal" and require due process and other protections.

Where contempt sanctions are intended to effect compliance with court 
orders, or are the result of disruptive or destructive behavior that 
interferes with a court's proceedings (withholding testomony, outbursts 
or insulting behavior in the court, withholding evidence, refusal to 
appear), contempt sanctions are civil, and can be leveled on the spot 
without any protections or review.

> > The court makes a point to justify severe sanctions where testimony is 
> > sought, or the proceedings are threatened.  "The necessity 
> > justification for the contempt authority is at its pinnacle, of 
> > course, where contumacious conduct threatens a court's immediate 
> > ability to conduct its proceedings, such as where a witness refuses to 
> > testify, or a party disrupts the court... [t]hus, petty, direct 
> > contempts in the presence of the court traditionally have been subject 
> > to summary adjudication, 'to maintain order in the courtroom and the 
> > integrity of the trial process in the face of an 'actual obstruction 
> > of justice.'"  International Union, supra (quoting Codispoti v. 
> > Pennsylvania, 418 U.S., at 513 and citing numerous other sources).
> 
> Would there be a distinction between contempt by a witness and that by
> the defendant (in a criminal case)?  I could see justification for
> attempting to compel testimony from a witness who can shed needed light
> on guilt or innocence in the case.  A man's freedom or perhaps his very
> life is at stake.  But it seems to be another matter to compel the
> defendant himself to provide some information which will be detrimental
> to himself.

Historically, and in my experience, criminal defendants are given a lot 
more leeway.  No judge is going to push constitutional rights with 
contempt sanctions.  If, however, in the judge's view there are not 
constitutional rights which apply, defendant's are just as likely to get 
smacked.  (One example that comes to mind is where the defendant waived 
his Fifth Amendment rights, then refused to testify anyhow.  Prosecution 
objected and asked for contempt sanctions [for which there was a very 
good argument, the waiver was quite explicit and the prosecution had 
based a good deal of argument on it and defendant's existing 
testomony already.]  The judge refused to level contempt, prosecution 
appealed the decision immediately and we went all the way to oral 
argument before the appeals court upheld the judge's decision.  The 
appeals court judge cited specifically the importance of leeway in 
criminal cases and refused to find clear error).

> 
> The defendant has some Fifth Amendment rights, but for those cases
> where what he is ordered to do has been found not to be protected by
> the Fifth Amendment it still seems bizarre to imagine him jailed for
> contempt if he refuses.  Are there precedents for holding a defendant in
> contempt for standing mute at his own trial?
>

These are generally only after an explicit waiver of fifth amendement 
rights, or when they clearly, quite clearly, do not apply.  I'll dig up 
cites if there is enough interest.

> (Part of my problem with this scenario is my sense that despite gradual
> erosion of the rights against self incrimination, verbally revealing a
> pass phrase which will unlock an encrypted document seems like
> testimony, and something which should be protected.  Is there such a
> difference between "Reveal the pass phrase" and "Reveal what you did with
> the knife", if the judge doesn't believe the denials of the ability to
> comply?)

To trigger Fifth amendment rights, an act must be testimonial, and 
incriminating.  I discussed it a bit in my note on asset concealing.  
I've reproduced the passage below:

The cases following In re Grand Jury Proceedings, 814 F.2d 791 (1st
Cir. 1987) demonstrate how the fifth amendment has been eroded or
eliminated in application to this problem.  In the In re case the
defendant was directed by the district court to sign a consent form
permitting the disclosure and production by a financial institution of
documents protected by Singapore banking secrecy law.  On refusing to
sign, the defendant was held in contempt.  The investigation alleged
reporting and currency violations.  The defendant appealed to the
First Circuit which held the signature as both "testimonial" and
"self-incriminating."  The court reasoned that the consent form
"amounts to an assertion" that the bank customer consented to
production of the requested records and that it was "self-
incriminating" because it could be used to demonstrate incriminating
facts (e.g., that the accounts in the witness's name existed and were
within the witness's control).  Even at the time, however, this
decision was in conflict with the Second, Fifth and Eleventh circuits,
which have held such an order does not violate the fifth amendment.
(Typically on the grounds that the forms signed were non-testimonial).

Lately, clever prosecutors and private litigants have evaded the
testimonial hitch entirely by phrasing their consent forms in the
hypothetical, and not naming specific account names or numbers.  The
Supreme Court upheld the order of contempt for a defendant refusing to
sign such a document.  See, Doe v. United States, 108 S. Ct. 2341
(1988).  The Court noted that the form was carefully drafted not to
make reference to a specific account, but only to speak in the
hypothetical.

[...]

For more examples See also, United States v. Davis, 767 F.2d at 1040
(holding any problem of testimonial self-incrimination is solved by
such an order precluding use of directive as admission); In re Grand
Jury Proceedings, 814 F.2d at 795 (expressly approving of reasoning in
Davis); United States v. A Grand Jury Witness, 811 F.2d 114, 117 (2d
Cir. 1987); United States v. Cid-Molina, 767 F.2d 1131, 1132 (5th Cir
1985); United States v. Ghidoni, 732 F.2d 814, 818 (11th Cir.), cert.
denied, 469 U.S. 932 (1984); United States v. Browne, 624 F. Supp.
245, 248 (N.D.N.Y. 1985); United States v. Quigg, 48 A.F.T.R.2d 81-
5953, 5955 (D. Vt. 1981).

*end

If there is enough interest, I will do a small note on the distinctions 
that have been important to courts in compelling production of 
potentially incriminating evidence.

> > Most interesting to the crypto crowd:
> > 
> > "Contempts such as failure to comply with document discovery, for 
> > example, while occurring outside the court's presence, impede the 
> > court's ability to adjudicate the proceedings before it and thus touch 
> > upon the core justification for the contempt power....  Similarly, 
> > indirect contempts involving discrete, readily ascertainable acts, 
> > _such as turning over a key_ or payment of a judgment, properly may be 
> > adjudicated through civil proceedings since the need for extensive, 
> > impartial fact-finding is less pressing."  International Union, supra 
> > (emphasis added).
> 
> I would guess that "turning over a key" here refers not to production to
> the court by rather to passing a physical key between two contesting
> parties, say a seller and buyer of some property that the key gives
> access to.  The phrase "turning over" rather than "production of" suggests
> this interpretation.  So this sounds like something which would be more
> likely to occur in a civil proceeding than a criminal one.

I have seen a court compell the production of safety deposit box keys in a
criminal case when those boxes were suspected to hold the fruits of a 
crime and the court had acknowledged the defendant's possesion of the 
key, and ownership of the box as well as the potential incriminating 
nature of the boxes contents.  A per day fine was imposed.  If you want 
specifics I'll attempt to get a waiver from the client and pass them on.

> Hal


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